Exhibit A - Home - Truth In Advertising...print publication, or via press release, whichever is earlier. 10. “Class Counsel” means James C. Shah of Shepherd, Finkelman, Miller

Exhibit A

Case: 1:15-cv-05876 Document #: 75-1 Filed: 08/18/16 Page 1 of 56 PageID #:779

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

STEPHANIE LEINER, Individually and on Behalf of All Others Similarly Situated,

Plaintiff,

vs.

JOHNSON & JOHNSON CONSUMER COMPANIES, INC.,

Defendant.

Case No.: 15-CV-5876 Hon. Elaine E. Bucklo

JOINT STIPULATION OF SETTLEMENT

I. RECITALS

A. This Joint Stipulation of Settlement (“Agreement”) is entered into by

and among Plaintiffs, Jacqueline Real (“Real”), Stephanie Leiner (“Leiner”),

Jinette Hidalgo (“Hidalgo”), and Jillian Gallagher (“Gallagher”) (collectively

“Plaintiffs”), on behalf of themselves and the Settlement Class Members, and

Defendant, Johnson & Johnson Consumer Inc., improperly named as Johnson &

Johnson Consumer Companies, Inc. ( “JJCI” or “Defendant”), and resolves in full

the Actions. Capitalized terms used herein are defined in Section II of this

Agreement or indicated in parentheses elsewhere in this Agreement. Subject to

Court approval as required by the applicable Federal Rules of Civil Procedure, and

as provided herein, Plaintiffs and Defendant (“the Parties”) hereby stipulate and


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agree that, in consideration for the promises and covenants set forth in the

Agreement and upon the entry by the Court of a Final Judgment and Order

Approving Settlement and the occurrence of the Effective Date, the Actions shall

be settled and compromised upon the terms and conditions contained herein.

B. WHEREAS, on July 7, 2014, Plaintiff Real served a letter pursuant to

the California Consumers Legal Remedies Act, Civ. Code § 1750, et seq.

(“CLRA”) regarding certain of JJCI’s products. Thereafter, on July 2, 2015,

Plaintiffs Leiner, Real, Hidalgo and Gallagher each filed a class action complaint

against Defendant. The complaints filed in the four lawsuits each assert claims

under the law of the state where the complaint is filed for fraudulent, deceptive,

false advertising, sales and marketing practices regarding Defendant’s Bedtime

Bath Products (“Bedtime Products”) that purport to be clinically proven to help a

baby sleep better. The four cases (the “Actions”) include: 1) Leiner v. Johnson &

Johnson Consumer Companies, Inc., Case No. 1:15-cv-05876 (N.D. Ill.)

(“Leiner”); Real v. Johnson and Johnson Consumer Companies, Inc., Case No.

2:15-cv-05025-SVW-JEM (C.D.CA) (“Real”); Hidalgo v. Johnson and Johnson

Consumer Companies, Inc., 1:15-cv-051990 SAS (S.D.N.Y.) (“Hidalgo”); and

Gallagher v. Johnson & Johnson Consumer Companies, Inc., Case No. L-2557-15

(Sup. Ct. N.J.) (“Gallagher”). JJCI has filed an answer in each of the Actions,

denying the allegations and claims asserted therein; and


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C. WHEREAS, Class Counsel previously filed and litigated, through

partial discovery, a nearly identical putative class action making similar allegations

in the District of New Jersey, Lieberson, et al. v. Johnson & Johnson Consumer

Companies, Inc., CA No.10-cv-6196. The complaint was sustained following

motion practice. Some document discovery was conducted by the parties and

approximately 5,000 pages of documents were produced by Defendant, which

discovery the Parties in the Related Cases agreed could be used in the Related

Cases. Plaintiff voluntarily dismissed that action on June 19, 2014.

D. WHEREAS, counsel for all Parties have reached the resolution set

forth in this Agreement, providing for, among other things, the settlement of the

Actions between and among Plaintiffs, on behalf of themselves and the Settlement

Class, and Defendant on the terms and subject to the conditions set forth below;

and

E. WHEREAS, Class Counsel have determined that a settlement of the

Actions on the terms reflected in this Agreement is fair, reasonable, adequate, and

in the best interests of Plaintiffs and the Settlement Class; and

F. WHEREAS, Defendant, to avoid the costs, disruption and distraction

of further litigation, and without admitting the truth of any allegations made in the

Actions, or any liability with respect thereto, has concluded that it is desirable that


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the claims against it be settled and dismissed on the terms reflected in this

Agreement.

NOW, THEREFORE, this Agreement is entered into by and among the

Parties, by and through their respective counsel and representatives, and in

consideration of the mutual promises, covenants and agreements contained herein

and for value received, the Parties agree that: (1) upon the Effective Date, the

Actions and all Released Claims shall be settled and compromised as between

Plaintiffs and the Settlement Class on the one hand, and JJCI on the other hand;

and (2) upon final approval of the Agreement, the Final Judgment and Order

Approving Settlement shall be entered dismissing the Actions with prejudice and

releasing all Released Claims against the Released Parties.

II. DEFINITIONS

A. As used in this Agreement and the attached exhibits (which are an

integral part of the Agreement and are incorporated in their entirety by reference),

the following terms shall have the meanings set forth below, unless this Agreement

specifically provides otherwise:

1. “Actions” or “Related Actions” means Leiner v. Johnson &

Johnson Consumer Companies, Inc., Case No. 1:15-cv-05876 (N.D. Ill.); Real v.

Johnson and Johnson Consumer Companies, Inc., Case No. 2:15-cv-05025-SVW-

JEM (C.D.CA); Hidalgo v. Johnson and Johnson Consumer Companies, Inc.,


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1:15-cv-051990 (S.D.N.Y.); and Gallagher v. Johnson & Johnson Consumer

Companies, Inc., Case No. L-2557-15 (Sup. Ct. N.J.).

2. “Agreement” means this Joint Stipulation of Settlement

(including all exhibits attached hereto).

3. “Attorneys’ Fees and Expenses” means such attorneys’ fees and

expenses as may be awarded by the Court based on this Agreement to compensate

Class Counsel and all other Plaintiffs’ Counsel (subject to Court approval), as

described more particularly in Section X of this Agreement.

4. “Authorized Claimant(s)” means any Settlement Class Member

who submits a valid Claim Form that is approved by the Settlement Administrator.

5. “Award” means the relief obtained by Settlement Class

Members pursuant to Section IV of this Agreement.

6. “Claim” means a request for relief submitted by a Settlement

Class Member on a Claim Form to the Settlement Administrator in accordance

with the terms of the Agreement.

7. “Claim Form” means the form to be used by a Settlement Class

Member to submit a Claim to the Settlement Administrator. The proposed Claim

Form is subject to Court approval and attached hereto as Exhibit 5.

8. “Claims Deadline” means the date by which all Claim Forms

must be postmarked or submitted online to the Settlement Administrator to be


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considered timely. The Claims Deadline shall be stated in the Preliminary

Approval Order, Class Notice, on the Settlement Website, and in the Claim Form,

and shall be no later than 100 Days after the date the Court enters the Final

Judgment and Order Approving Settlement. All Claims postmarked or submitted

online after the Claims Deadline shall be untimely and barred from entitlement to

any monetary Award, unless the Parties agree otherwise.

9. “Claim Period” means the time period during which Settlement

Class Members may submit a Claim Form to the Settlement Administrator for

review. The Claim Period shall run for a period of time ordered by the Court, and

last at least one-hundred and twenty (120) Days from the date of the first

publication of the Long-form Notice or Short-form Notice, whether online, via

print publication, or via press release, whichever is earlier.

10. “Class Counsel” means James C. Shah of Shepherd, Finkelman,

Miller & Shah, LLP and Jayne A. Goldstein of Pomerantz LLP.

11. “Class Notice” or “Notice” means the forms of notice to be

disseminated to Settlement Class Members informing them about the Agreement.

Copies of each of the proposed Notices are attached respectively as Exhibits 3

(“Long-form Notice”) and 4 (“Short-form Notice”) and will be submitted to the

Court in connection with the Motion for Preliminary Approval of Settlement.


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12. “Class Period” means July 1, 2010, up to and including the date

the Court enters the Preliminary Approval Order.

13. “Class Representatives” or “Plaintiffs” means Stephanie Leiner,

Jacqueline Real, Jinette Hidalgo and Jillian Gallagher.

14. “Court” means the U.S. District Court for the Northern

District of Illinois, in which the Leiner matter was filed and where the parties will

seek approval of the Settlement.

15. “Covered Product(s)” means the Bedtime Products that were

labeled, marketed and/or advertised as “clinically proven [to] help baby sleep

better” or to be used as part of a “bedtime” or “nighttime” routine, including:

JOHNSON’S® BEDTIME® Baby Bath, JOHNSON’S® BEDTIME® Baby

Lotion, JOHNSON’S® BEDTIME® Baby Moisture Wash, JOHNSON’S® Baby

BEDTIME® Washcloths, and JOHNSON’S® BEDTIME® Baby Bubble Bath &

Wash.

16. “Days” means calendar days, except that, when computing any

period of time prescribed or allowed by this Agreement, the day of the act, event or

default from which the designated period of time begins to run shall not be

included. Further, when computing any period of time prescribed or allowed by

this Agreement, the last day of the period so computed shall be included, unless it

is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the


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end of the next day which is not a Saturday, Sunday, or legal holiday. All

calculations of days and times may be adjusted with the consent of all parties to

permit compliance by Defendant with the Class Action Fairness Act, 28 U.S.C. §§

1711-1715, including the notifications of appropriate regulators under 28 U.S.C.

§1715(b) and expiration of the 90-day review period in 28 U.S.C. § 1715 before

the Final Approval Hearing is held to review and approve the Agreement.

17. “Defendant” and “JJCI” mean Johnson & Johnson Consumer

Inc., improperly named as Johnson & Johnson Consumer Companies, Inc.

18. “Effective Date” means:

(a) if no appeal is taken from the Final Judgment and Order

Approving Settlement, thirty (30) Days after the Court enters the Final

Judgment and Order Approving Settlement; or

(b) if an appeal is taken from the Final Judgment and Order

Approving Settlement, the date on which all appellate rights

(including petitions for rehearing or re-argument, petitions for

rehearing en banc, petitions for certiorari or any other form of review,

and proceedings in the United States Supreme Court or any other

appellate court) have expired, been exhausted, or been finally

disposed of in a manner that affirms the Final Judgment and Order

Approving Settlement.


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19. “Eligible Claims” means claims submitted by Authorized

Claimants against the Settlement Fund.

20. “Escrow Account” means the interest-bearing account to be

established by the Settlement Administrator.

21. “Escrow Agent” means the escrow agent agreed upon by the

parties and approved by the Court to hold funds pursuant to the terms of this

Agreement.

22. “Final Approval Hearing” means the hearing to be conducted

by the Court on such date as the Court may order to determine the fairness,

adequacy, and reasonableness of the Agreement and to determine the Attorneys’

Fees and Expenses and any Service Awards. The Parties shall request the Court

set the Final Approval Hearing no earlier than ninety (90) Days after the Notice

Date.

23. “Final Judgment and Order Approving Settlement” means the

Final Judgment and Order Approving Settlement to be entered by the Court (which

will be agreed upon by the Parties and submitted prior to the Final Approval

Hearing):

a. approving the Settlement as fair, adequate, and

reasonable;

b. confirming the certification of the Settlement Class;


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c. dismissing the Actions with prejudice;

d. discharging the Released Parties of and from all further

liability for the Released Claims;

e. permanently barring and enjoining the Released Parties

from instituting, filing, commencing, prosecuting,

maintaining, continuing to prosecute, directly or

indirectly, as an individual or collectively,

representatively, derivatively, or on behalf of them, or in

any other capacity of any kind whatsoever, any action in

any state court, any federal court, before any regulatory

authority, or in any other tribunal, forum or proceeding of

any kind against the Released Parties that asserts any

Released Claims; and

f. issuing such other findings and determinations as the

Court and/or the Parties deem necessary and appropriate

to implement the Agreement.

24. “Initial Claim Amount” means the amount a Settlement Class

Member claims on a Claim Form that is timely, valid, and approved by the

Settlement Administrator. The value basis of the Initial Claim Amount is

described in Section IV. The Initial Claim Amount is subject to pro rata increase


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or decrease, depending on the value of all approved Claims submitted, pursuant to

Section IV.

25. “Motion for Preliminary Approval of Settlement” means the

motion, to be filed by Plaintiffs, and not opposed by JJCI, for Preliminary

Approval of this Agreement and all supporting papers/exhibits attached thereto.

26. “Notice and Claim Administration Expenses” means all costs

and expenses incurred by the Settlement Administrator, including all notice

expenses, the cost of administering the Notice Program and the costs of processing

all Claims made by Settlement Class Members.

27. “Notice Date” means the last date, set by the Court, by which

the Settlement Administrator completes the notice plan described in Section VII.

The Notice Date shall be no later than forty-five (45) Days after the Court enters a

Preliminary Approval Order.

28. “Objection Date” means the date by which Settlement Class

Members must file with the Court and serve on the Parties any objections to the

Settlement and shall be no later than 30 Days before the date first set for the Final

Approval Hearing or as required by applicable law.

29. “Opt-Out Date” means the postmark date by which a Request

for Exclusion must be submitted to the Settlement Administrator in order for a


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Settlement Class Member to be excluded from the Settlement Class, and shall be

no later than 30 Days before the date first set for the Final Approval Hearing.

30. “Plaintiffs’ Counsel” means James C. Shah and Natalie

Finkelman Bennett of Shepherd, Finkelman, Miller & Shah, LLP, Jayne A.

Goldstein of Pomerantz, LLP, James Zouras of Stephan Zouras LLP, Kim E.

Richman of The Richman Law Group, and John W. Trimble of Trimble &

Armano.

31. “Preliminary Approval Order” means the order to be entered by

the Court, substantially in the form of Exhibit 1, preliminarily approving the

Settlement, conditionally certifying the Settlement Class, setting the date of the

Final Approval Hearing, approving the Notice Program, Class Notice, and Claim

Form, and setting the Opt-Out Date, Objection Date, and Notice Date.

32. “Proof of Purchase” means a receipt or other documentation

from a third-party reasonably establishing the fact and date of purchase of a

Covered Product during the Class Period in the United States, the District of

Columbia, and all U.S. territories, including Puerto Rico, Guam and the Virgin

Islands.

33. “Released Claim(s)” and “Released Parties” mean those claims

and parties released of liability under Section IX.


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34. “Request(s) for Exclusion” means the written communication

that must be submitted to the Settlement Administrator and postmarked on or

before the Opt-Out Date by a Settlement Class Member who wishes to be excluded

from the Settlement Class.

35. “Residual Settlement Amount” means any funds remaining in

the Settlement Fund after the payment of all Eligible Claims, Notice and Claim

Administration Expenses, Service Awards, any Attorneys’ Fees and Expenses, and

any escrow charges and taxes related to the Settlement Fund.

36. “Service Award(s)” means the payment, subject to Court

approval, of Five Thousand Dollars ($5,000.00) each to Plaintiffs Stephanie

Leiner, Jacqueline Real, Jinette Hidalgo and Jillian Gallagher from the Settlement

Fund.

37. “Settlement Administrator” means the entity(ies) retained by

the Parties and approved by the Court to design and implement the program for

disseminating Notice to the Class, administer the claims portion of this Settlement,

and perform overall administrative functions.

38. “Settlement Class” and “Settlement Class Member(s)” each

means all persons who purchased Covered Products within the United States, the

District of Columbia, and all U.S. territories, including Puerto Rico, Guam and the

Virgin Islands, and each of their respective spouses, executors, representatives,


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heirs, successors, bankruptcy trustees, guardians, wards, agents and assigns, and all

those who claim through them or who assert duplicative claims for relief on their

behalf, from July 1, 2010 to the date the Court enters the Preliminary Approval

Order. Excluded from the Settlement Class are: (i) purchasers of the Covered

Products with the revised labels from early 2016 that state on the front label

“clinically proven routine helps baby fall asleep faster and stay asleep longer”; (ii)

those who purchased Covered Products for purpose of resale; (iii) those with

claims for personal injuries arising from the use of Covered Products; (iv)

Defendant and its officers, directors and employees; (v) any person who files a

valid and timely Request for Exclusion; and (vi) the Judge(s) to whom these

Actions are assigned and any members of his/her/their immediate families.

39. “Settlement Fund” means the amount of Five Million Dollars

($5,000,000.00) to be funded by Defendant and from which Eligible Claims,

Notice and Claim Administration Expenses, any and all Service Awards, any and

all Attorneys’ Fees and Expenses and any and all escrow charges and taxes related

to the Settlement Fund are to be paid. The Settlement Fund is non-reversionary,

and any Residual Settlement Amount will be distributed through a cy pres process

to an entity mutually agreed to by the Parties and approved by the Court.

40. “Settlement Website” means the Internet website to be

established for this Settlement by the Settlement Administrator, whose domain


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name shall be mutually agreed upon by the Parties, to provide information to the

public and the Settlement Class about this Agreement and to permit Settlement

Class Members to submit Claims online. The Settlement Website shall be

activated no later than ten (10) Days after the entry of the Preliminary Approval

Order and shall remain active until the Effective Date or such later date as may be

agreed to by Class Counsel and Defendant’s Counsel.

41. “JJCI’s Counsel” or “Defendant’s Counsel” means Mark A.

Neubauer of Carlton Fields Jorden Burt, LLP and Kristen Reilly of Carlton Fields

Jorden Burt, P.A.

B. Other capitalized terms in this Agreement but not specifically defined

in Section II(A) shall have the meanings ascribed to them elsewhere in this

Agreement.

III. CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS

FOR SETTLEMENT PURPOSES ONLY AND DISMISSAL OF

ACTIONS

A. Certification of the Settlement Class

1. This Agreement is for settlement purposes only, and neither the

fact of, nor any provision contained in this Agreement, nor any action taken

hereunder, shall constitute or be construed as an admission of: (a) the validity of

any claim or allegation by Plaintiffs, or of any defense asserted by JJCI, in the

Actions, or (b) any wrongdoing, fault, violation of law, or liability on the part of


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any Party, Released Party, Settlement Class Member, or their respective counsel;

or (3) the propriety of class certification in the Actions or any other action or

proceeding.

2. As part of the Motion for Preliminary Approval of Settlement,

Plaintiffs will seek certification of the Settlement Class. JJCI hereby consents,

solely for purposes of the Agreement, to the certification of the Settlement Class,

to the appointment of Class Counsel, and to the approval of Plaintiffs as suitable

representatives of the Settlement Class; provided, however, that if the Court fails to

approve this Agreement or the Agreement otherwise fails to be consummated by

the Effective Date, then JJCI shall retain all rights it had immediately preceding the

execution of this Agreement to object to the maintenance of any or all of the

Actions as class actions and this Agreement shall be void and will not constitute,

be construed as, or be admissible in evidence as, an admission of any kind or be

used for any purpose in the Actions or in any other pending or future action.

Moreover, the Court’s certification of the Settlement Class shall not be deemed to

be an adjudication of any fact or issue for any purpose other than the

accomplishment of the provisions of this Agreement, and shall not be considered

the law of the case, res judicata, or collateral estoppel in the Actions or any other

proceeding unless and until the Court enters a Final Judgment and Order

Approving Settlement, and regardless of whether the Effective Date occurs, the


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Parties’ agreement to class certification for settlement purposes only (and any

statements or submissions made by the Parties in connection with seeking the

Court’s approval of this Agreement) shall not be deemed to be a stipulation as to

the propriety of class certification, or any admission of fact or law regarding any

request for class certification, in any other action or proceeding, whether or not

involving the same or similar claims. In the event the Court does not enter a Final

Judgment and Order Approving Settlement, or the Effective Date does not occur,

or the Agreement is otherwise terminated or rendered null and void under the terms

of this Agreement, the Parties’ agreement to certification of the Settlement Class

for settlement purposes shall be null and void, the Court’s certification order shall

be vacated, and thereafter no class or classes will remain certified; provided,

however that Plaintiffs’ Counsel and Class Counsel may thereafter seek

certification of the same or a new class or classes in the Actions, and JJCI may

oppose such certification on any available grounds.

B. Dismissal of Actions

Upon final approval of the Settlement by the Court, the Final Judgment and

Order Approving Settlement substantially in the form agreed by the Parties, will be

entered by the Court, providing for the dismissal of each of the Actions with

prejudice. The Parties in the Gallagher, Hidalgo, and Real actions have moved to

stay those actions pending the Final Judgment and Order Approving Settlement,


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and each of those motions have been granted. Class Counsel and/or Plaintiffs’

Counsel agree to file a motion or stipulation for dismissal with prejudice of the

Gallagher, Hidalgo and Real actions within five (5) Days after the Effective Date.

IV. SETTLEMENT RELIEF

A. Settlement Fund and Cash Payments

1. JJCI shall establish the Settlement Fund in the amount of

Five Million Dollars ($5,000,000.00) by depositing with the Escrow Agent this

amount no later than 30 Days after entry of the Preliminary Approval Order. Until

such time as these funds have been deposited with the Escrow Agent, JJCI shall be

responsible for payment of any costs of administration, with any such amounts

paid to be deducted from the Five Million Dollars ($5,000,000.00) deposited with

the Escrow Agent.

2. Upon the establishment of the Escrow Account, the

Settlement Fund may be invested in interest-bearing, short-term instruments—to

be agreed upon by Class Counsel and Defendant—that are backed by the full faith

and credit of the United States Government or that are fully insured by the United

States Government or an agency thereof (the “Instruments”). The interest proceeds

and the principal may thereafter be reinvested as they mature in similar

Instruments, bearing in mind the liquidity requirements of the Escrow Account to

ensure that it contains sufficient cash available to pay all invoices, taxes, fees,


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costs, expenses, and other required disbursements, in a timely manner. Any

interest proceeds will be added to the Settlement Fund. Except as otherwise

specified herein, the Instruments at all times will remain in the Escrow Account.

3. The Settlement Fund at all times will be deemed a “qualified

settlement fund” within the meaning of United States Treasury Reg. § 1.468B-1.

All taxes (including any estimated taxes, and any interest or penalties relating to

them) arising with respect to the income earned by the Settlement Fund or

otherwise, including any taxes or tax detriments that may be imposed upon

Defendant or its counsel with respect to income earned by the Settlement Fund for

any period during which the Settlement Fund does not qualify as a “qualified

settlement fund” for the purpose of federal or state income taxes or otherwise

(collectively “Taxes”), will be paid out of the Settlement Fund. The Escrow Agent

shall timely make such elections as necessary or advisable to fulfill the

requirements of such Treasury Regulation, including the “relation-back election”

under U.S. Treasury Regulation §1.468B-1(j)(2) to the earliest permitted date.

Such election shall be made in compliance with the procedures and requirements

contained in the Treasury Regulations. Defendant and its counsel, and Plaintiffs

and Class Counsel, will have no liability or responsibility for any of the Taxes.

The Settlement Fund will indemnify and hold Defendant and its counsel, and


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Plaintiffs and Class Counsel, harmless for all Taxes (including, without limitation,

Taxes payable by reason of any such indemnification).

4. A Settlement Class Member is eligible to obtain Three Dollars

($3.00) for each purchase of a Covered Product for up to five (5) Covered Products

purchased during the Class Period defined in the Agreement, without the need to

present Proof of Purchase. Settlement Class Members must provide valid Proof of

Purchase for all Covered Products claimed that exceed five (5) Covered Products.

The maximum number of Covered Products for which any Settlement Class

Member may claim with Proof of Purchase is ten (10). To receive a payment

Award, each claimant must submit a valid and timely Claim Form (sample

attached hereto at Exhibit 5) either by mail or electronically. The actual amount

paid to individual claimants will depend upon the number of valid claims made, as

described in Section IV (C), infra. For each Claim made, the claimant must

include in the Claim the number of Covered Products and the type of Covered

Product(s) purchased and a representation that the purchase(s) occurred in the

United States, the District of Columbia or a U.S. territory during the Class Period.

B. Injunctive Relief

As part of the consideration for this Agreement, JJCI agrees to continue to

include the language stating that the “routine helps baby fall asleep faster and stay

asleep longer” or similar language referencing the routine alongside any clinically


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proven language that exists on the Bedtime Products currently being distributed by

JJCI or on any subsequent revisions to the Bedtime Products’ labels that include

the “clinically proven” language. Nothing in this Agreement shall preclude JJCI

from making further changes to any of its product labels or marketing, including

the Bedtime Products’ labels: (1) that JJCI reasonably believes are necessary to

comply with the National Advertising Divisions’ rules, guidelines or decisions, or

any other statute, regulation, or other law of any kind; (2) that are permitted by

product changes or additional testing or development work and/or to ensure JJCI

provides accurate product descriptions; or (3) that are more detailed than those

required by this Agreement. Moreover, nothing in this Agreement shall preclude

independent retailers or wholesalers from selling any Covered Products remaining

in their inventory that contain the “clinically proven help baby sleep better”

language.

C. Disbursements from the Settlement Fund

1. In accordance with the payment schedule set forth in this

Agreement, money from the Settlement Fund shall be applied as follows:

a. First, to pay any Escrow charges and taxes incurred by

the Settlement Fund;


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b. Next, to pay the Notice and Claims Administration

Expenses, Service Awards, and the Attorneys’ Fees and Expenses, all as approved

by the Court; and

c. Next, to pay Eligible Claims.

The money remaining in the Settlement Fund after deduction of Escrow charges,

taxes, the Notice and Claims Administration Expenses, Service Awards, and the

Attorneys’ Fees and Expenses is the “Net Settlement Fund.”

2. If the total amount of the timely, valid, and approved Eligible

Claims submitted by Settlement Class Members exceeds the available relief,

considering any fees, payments, and costs set forth in this Agreement that must

also be paid from the Settlement Fund, each eligible Settlement Class Member’s

Initial Claim Amount shall be proportionately reduced on a pro rata basis, such

that the aggregate value of the cash payments does not exceed the Settlement Fund

balance. If the total amount of the timely, valid, and approved Eligible Claims

submitted by Settlement Class Members results in there being any remaining value

in the Settlement Fund, it shall be used to increase eligible Settlement Class

Members’ relief on a pro rata basis such that Settlement Class Members shall

receive an additional increased payment of up to one hundred percent (100%) of

the Eligible Class Members’ Initial Claim Amount, so that if the Settlement Class

Member submitted an Initial Claim of $15.00 and sufficient funds are remaining,


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the Settlement Class Member could receive up to a $30.00 payment from the

Settlement Fund. The Settlement Administrator shall determine each authorized

Settlement Class Member’s pro rata share based upon each Settlement Class

Member’s Claim Form and the total number of valid Claims. Accordingly, the

actual amount recovered by each Settlement Class Member will not be determined

until after the Claim Period has ended and all Claims have been calculated.

3. If, after the payment of all valid Claims, including any pro rata

increase, Notice and Administration Expenses, Attorneys’ Fees and Expenses,

Service Awards, and any other claim, cost, or fee specified by this Agreement,

value remains in the Settlement Fund, it shall be called the Residual Settlement

Amount.

4. In accordance with the cy pres doctrine, any amount remaining

in the Net Settlement Fund (the Residual Settlement Amount) shall, subject to

Court approval, be paid 75% to the organization Nurse-Family Partnership, Tax Id

No. 20-0234163 and 25% to the organization Newborns in Need, Tax Id No. EIN

43-1808983. Such distribution, if any, shall be made within eighteen (18) months

after all other payments in the Settlement Fund have been paid according to the

payment distribution date outlined in Section V (C), infra.

V. CLAIM FORM SUBMISSION AND REVIEW


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A. Settlement Class Members may submit a Claim for Settlement relief

and the Settlement Administrator shall review and process the Claim pursuant to

the guidelines set forth below. Each Settlement Class Member shall sign and

submit a Claim Form that states, to the best of his or her knowledge, the total

number and type of purchased Covered Products, and location of his or her

purchases. The Claim Form shall be signed under an affirmation stating the

following or substantially similar language: “I declare, under penalty of perjury,

that the information in this Claim Form is true and correct to the best of my

knowledge, and that I purchased the Covered Products claimed above during the

Class Period for personal or household use and not for resale. I understand that my

Claim Form may be subject to audit, verification, and review.”

B. Claim Forms will be distributed as part of the Notice Program as

described below, will be available for on-line submission from the Settlement

Website and available for download from the Settlement Website. Upon request,

Claim Forms will be mailed or emailed to Settlement Class Members by the

Settlement Administrator. The Claim Form will also be available for download, at

the option of Settlement Class Members, from Class Counsel’s website and may be

submitted to the Settlement Administrator by U.S. mail or other regularly

maintained mail delivery service.


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C. The Settlement Administrator shall not begin to pay Eligible Claims

until the later in time of (i) thirty (30) Days after the Claims Deadline or (ii)

fourteen (14) Days after the Effective Date.

D. Claim Form Protocol

The Settlement Administrator shall gather and review the Claim Forms

received pursuant to the Agreement, and fulfill valid claims.

1. Settlement Class Members who submit a timely and valid

Claim Form shall be designated as Authorized Claimants. The Settlement

Administrator shall examine the Claim Form before designating the

Settlement Class Member as an Authorized Claimant to determine that the

information on the Claim Form is reasonably complete and contains

sufficient information to enable the mailing of the Settlement payment to the

Settlement Class Member.

2. No Settlement Class Member may submit more than one Claim

Form. The Settlement Administrator shall identify any Claim Forms that

appear to seek relief on behalf of the same Settlement Class Member

(“Duplicate Claims”). The Settlement Administrator shall determine

whether there is any duplication of claims, if necessary by contacting the

claimant(s) or their counsel. The Settlement Administrator shall designate

any such Duplicative Claims as invalid Claims to the extent they allege the


26

same damages or allege damages on behalf of the same Settlement Class

Member.

3. The Settlement Administrator shall exercise, in its discretion,

all usual and customary steps to prevent fraud and abuse and take any

reasonable steps to prevent fraud and abuse in the Claim process. The

Settlement Administrator may, in its discretion, deny in whole or in part, any

Claim to prevent actual or possible fraud or abuse. In the event a Settlement

Class Member disagrees with the determination of the Settlement

Administrator, the Settlement Class Member may send a letter to the

Settlement Administrator requesting reconsideration of the rejection and the

Settlement Administrator shall reconsider such determination, which shall

include consultation with Class Counsel and Defendant’s Counsel. The

Parties shall meet and confer regarding resolution of those Claims and, if

unable to agree, the Settlement Administrator shall make the final

determination.

4. By agreement of the Parties, the Parties can instruct the

Settlement Administrator to take whatever steps they deem appropriate to

preserve the Settlement Fund to further the purposes of the Agreement if the

Settlement Administrator identifies actual or possible fraud or abuse relating


27

to the submission of Claims, including, but not limited to, denying in whole

or in part, any Claim to prevent actual or possible fraud or abuse.

5. The Settlement Administrator shall provide monthly reports to

Class Counsel and JJCI’s Counsel, or in more frequent intervals at either

Parties’ request, regarding the implementation of the Agreement and this

protocol, which reports shall include the number of Claims submitted,

average number of claims, and such other information as required for Class

Counsel or JJCI to exercise their rights under this Agreement. Claim Forms

and supporting documentation will be kept confidential by the Settlement

Administrator and will be provided only to the Court upon request. The

Settlement Administrator shall also provide such reports and such other

information as the Court may require. The Settlement Administrator shall

maintain records of all Claims submitted until at least three hundred sixty-

five (365) Days after the last of the Claims payment checks to Settlement

Class Members is issued and such records will be made available upon

request to Class Counsel and Defendant’s Counsel.

6. If a Claim Form cannot be processed without additional

information, the Settlement Administrator shall promptly e-mail or mail a

letter that advises the claimant of the additional information and/or

documentation needed to validate the Claim. The claimant shall have thirty


28

(30) Days from the postmark date of the letter sent by the Settlement

Administrator to respond to the request from the Settlement Administrator

and the claimant shall be so advised.

(a) In the event the claimant timely provides the requested

information, the Claim shall be deemed validated and shall be processed for

payment.

(b) In the event the claimant does not timely provide the

information, the Claim may be denied or reduced to the Claim amount

reasonably supported by the information or documentation without further

communication with the claimant.

7. If a Claim is reduced or denied because the Settlement

Administrator determined that the additional information and/or

documentation was not sufficient to support or prove the Claim, the

Settlement Administrator shall provide a report to Class Counsel and

Defendant’s counsel.

VI. RETENTION OF THE SETTLEMENT ADMINISTRATOR

A. The Parties have retained Dahl Administration (the “Settlement

Administrator”) to help implement the terms of the Agreement. As provided

herein, all Notice and Claims Administration Expenses shall be paid out of the

Settlement Fund.


29

1. The Settlement Administrator shall assist with various

administrative tasks, including, without limitation: (1) mailing or arranging for the

mailing, emailing or other distribution of the Long-form Notice and Claim Forms

to Settlement Class Members who so request, (2) arranging for publication of the

Short-form Notice, including on the Settlement Website, (3) handling returned

mail and email not delivered to Settlement Class Members, (4) attempting to obtain

updated address information for Settlement Class Members whose correspondence

is returned without a forwarding address or an expired forwarding address, (5)

making any additional mailings required under the terms of this Agreement, (6)

answering oral and written inquiries from Settlement Class Members and/or

forwarding such inquiries to Class Counsel or their designee, (7) receiving and

maintaining, on behalf of the Court and the Parties, any Settlement Class Member

correspondence regarding Requests for Exclusion to the Settlement, (8)

establishing the Settlement Website that posts notices, Claim Forms and other

related documents, (9) establishing a toll-free telephone number, mutually agreed

to amongst the Parties, that will provide Settlement-related information to

Settlement Class Members, (10) receiving and processing Claims and distributing

payments to Settlement Class Members, and (11) otherwise assisting with

administration of the Agreement.


30

B. The contract with the Settlement Administrator shall obligate the

Settlement Administrator to abide by the following performance standards:

1. The Settlement Administrator shall accurately and objectively

describe, and shall train and instruct its employees and agents to accurately and

objectively describe, the provisions of this Agreement in communications with

Settlement Class Members.

2. The Settlement Administrator shall provide prompt, accurate

and objective responses to inquiries from Class Counsel or their designee, JJCI

and/or JJCI’s Counsel.

3. The Settlement Administrator shall keep a clear and careful

record of all communications with Settlement Class Members, all Claims

decisions, all expenses, and all tasks performed in administering the notice and

Claims review processes.

VII. NOTICE TO THE SETTLEMENT CLASS

A. Notice

1. No later than forty five (45) Days after the entry by the Court of

a Preliminary Approval Order (the Notice Date), the Settlement Administrator

shall cause the Class Notice to be disseminated to potential Settlement Class

Members pursuant to the Notice Program set forth in Exhibit 2. The Parties agree

that internet notice, directed website notice, and national publication notice, as


31

defined in the Notice Program set forth in Exhibit 2, are the best means under the

circumstances of this case to effect notice to the Settlement Class and that the

Notice Program outlined in Exhibit 2 comports with the requirements of due

process.

2. At or prior to the Final Approval Hearing, the Settlement

Administrator shall provide the Court with an affidavit attesting that Notice was

disseminated pursuant to the Notice Program.

B. Long-form Notice

The Long-form Notice shall be in substantially the form of Exhibit 3,

attached hereto, agreed to by the Parties and to be approved by the Court, and shall

be posted on the Settlement Website. At a minimum, the Long-form Notice shall:

(a) include a short, plain statement of the background of the Actions and the

Agreement; (b) describe the proposed Settlement relief as set forth in this

Agreement; (c) inform Settlement Class Members that, if they do not exclude

themselves from the Settlement Class, they may be eligible to receive relief; (d)

describe the procedures for participating in the Settlement, including all applicable

deadlines, and advise Settlement Class Members of their rights, including their

right to submit a Claim to receive an Award under the Agreement by submitting

the Claim Form; (e) explain the scope of the Release; (f) state that any Award to

Settlement Class Members under the Agreement is contingent on the Court’s final


32

approval of the Agreement; (g) state the identity of Class Counsel and the amount

sought in Attorneys’ Fees and Expenses; (h) explain the procedures for opting out

of the Settlement Class, including the applicable deadline for opting out; (i) explain

the procedures for objecting to the Agreement, including the applicable deadline;

and (j) explain that any judgment or orders entered in the Actions, whether

favorable or unfavorable to the Settlement Class, shall include and be binding on

all Settlement Class Members who have not been excluded; and (k) provide any

other information judicially required for Settlement Class Members to exercise or

choose not to exercise their due process rights.

C. Short-form Notice

The Short-form Notice shall be in substantially the form attached hereto as

Exhibit 4. At a minimum, the Short-form Notice shall: (a) include the web address

of the Settlement Website and a telephone number for the Settlement

Administrator; (2) include the class definition; (3) include a brief description of

relief available to the Settlement Class Members; and (4) inform of the right to

object and/or opt-out of the Settlement Class and the deadlines to exercise these

rights.

D. Notice Program and Dissemination of the Class Notice

1. Publication Notice: The Short-form Notice (Exhibit 4) shall be

published in accordance with the Notice Program set forth in Exhibit 2 no later


33

than forty five (45) Days from entry of a Preliminary Approval Order. As set forth

in Exhibit 2, publication will include internet notice, directed website notice, and

national publication notice. The Publication Notice shall also be posted on the

Settlement Website until the Effective Date, or such later date as may be agreed to

by Class Counsel and Defendant’s Counsel.

2. Posting of the Notice: No later than ten (10) Days from the

Preliminary Approval Order, the Settlement Administrator will post the Long-form

Notice (Exhibit 3) and Claim Form (Exhibit 5) on the Settlement Website. The

Long-form Notice and Claim Form shall remain available by these means until the

Effective Date. The Long-form Notice and/or the Short-form Notice and the Claim

Form may also be posted on the website(s) of Class Counsel, at its option.

3. Upon Request: The Long-form Notice and the Claim Form

shall also be sent via electronic mail or U.S. mail to Settlement Class Members

who so request.

VIII. OBJECTIONS, REQUESTS FOR EXCLUSION, AND MEDIA

COMMUNICATIONS

A. Objections

1. Any Settlement Class Member who intends to object to the

fairness of the Agreement must do so in writing no later than the Objection Date.

The written objection must be filed with the Court and served on Class Counsel

identified in the Notice and JJCI’s Counsel no later than the Objection Date. The


34

written objection must include: (a) a heading which refers to the Leiner action; (b)

the objector’s name, address, telephone number and, if represented by counsel, of

his/her counsel; (c) a statement that the objector purchased Covered Products

during the period of time described in the Settlement Class definition; (d) a

statement whether the objector intends to appear at the Final Approval Hearing,

either in person or through counsel; (e) a statement of the objection and the

grounds supporting the objection; (f) copies of any papers, briefs, or other

documents upon which the objection is based; (g) the name and case number of all

objections to class action settlements made by the objector or his/her counsel in the

past five (5) years; and (h) the objector’s signature.

2. Any Settlement Class Member who files and serves a written

objection, as described in the preceding Section, may appear at the Final Approval

Hearing, either in person or through counsel hired at the Settlement Class

Member’s expense, to object to any aspect of the fairness, reasonableness, or

adequacy of this Agreement, including Attorneys’ Fees and Expenses. Settlement

Class Members or their attorneys who intend to make an appearance at the Final

Approval Hearing must serve a notice of intention to appear on the Class Counsel

identified in the Class Notice, and to JJCI’s Counsel, and file the notice of

appearance with the Court, no later than twenty (20) Days before the Final

Approval Hearing, or as the Court may otherwise direct.


35

3. Any Settlement Class Member who fails to comply with the

provisions of Section VIII(A)(1) or (2) above shall waive and forfeit any and all

rights he or she may have to appear separately and/or to object, and shall be bound

by all the terms of this Agreement and by all proceedings, orders and judgments,

including, but not limited to, the Release, in the Actions.

B. Requests for Exclusion

1. Any member of the Settlement Class may request to be

excluded from the Settlement Class. A Settlement Class Member who wishes to

opt out of the Settlement Class must do so by sending to the Settlement

Administrator a written Request for Exclusion that is postmarked no later than the

Opt-Out Date. The Request for Exclusion must be personally signed by the

Settlement Class Member requesting exclusion, include their email and mailing

address, and contain a statement that indicates a desire to be excluded from the

Settlement Class. No Settlement Class Member shall be deemed opted-out of the

Settlement Class through any purported “mass” or “class” opt-outs, or via any class

actions, mass actions or collective or representative actions.

2. Any Settlement Class Member who does not file a timely

written Request for Exclusion shall be bound by all subsequent proceedings, orders

and the Final Judgment and Order Approving Settlement in the Leiner action, even


36

if he or she has pending, or subsequently initiates, litigation, arbitration or any

other proceeding against Defendant relating to the Released Claims.

3. Any Settlement Class Member who properly requests to be

excluded from the Settlement Class shall not: (a) be bound by any orders or

judgments entered in the Leiner action or the Related Actions; (b) be entitled to an

Award from the Settlement Fund, or be affected by the Agreement; (c) gain any

rights by virtue of the Agreement; or (d) be entitled to object to any aspect of the

Agreement.

4. The Settlement Administrator shall provide Class Counsel and

JJCI’s Counsel with a final list of all timely Requests for Exclusion within seven

(7) Days after the Opt-Out Date. Plaintiffs shall file the final list of all timely

Requests for Exclusion prior to or at the Final Approval Hearing.

C. Media Communications

1. Following the issuance of a Preliminary Approval Order

providing for dissemination of the Class Notice, the Parties agree that they may

issue a joint press release. Defendant and Class Counsel may post the joint press

release on Defendant’s website and Class Counsel’s website, if they so choose.

Any such joint press release shall only include information relating to the Actions

or this Agreement available in the public record. No other statements may be

made or reported directly or indirectly to any media or news reporting services,


37

absent consent of all Parties. Notwithstanding these obligations, JJCI may make

such disclosures regarding the Actions and the terms of the Agreement as it deems

necessary in its filings with the Securities and Exchange Commission, to its

auditors, or as otherwise required by state or federal law.

2. Nothing herein shall prevent Class Counsel from responding to

class member inquiries regarding the Settlement in a manner consistent with the

terms and conditions of this Agreement.

IX. RELEASES

A. The Agreement shall be the sole and exclusive remedy for any and all

Released Claims of all Releasing Parties against all Released Parties. No Released

Party shall be subject to liability of any kind to any Releasing Party with respect to

any Released Claim. Upon the Effective Date, and subject to fulfillment of all of

the terms of this Agreement, each and every Releasing Party shall be permanently

barred and enjoined from initiating, asserting and/or prosecuting any Released

Claim against any Released Party in any court or any forum.

B. The following terms have the meanings set forth herein:

1. “Released Claims” means any and all actions, claims, demands,

rights, suits, and causes of action of whatever kind or nature that could reasonably

have been, or in the future might reasonably be asserted by Plaintiffs or Settlement

Class Members or the Releasing Parties either in the Actions or in any action or


38

proceeding in this Court or in any other court or forum, against the Released

Parties, including damages, costs, expenses, penalties, and attorneys’ fees, known

or unknown, suspected or unsuspected, in law or equity arising out of or relating to

legal claims made by the Plaintiffs or Members of the Settlement Class or the

Releasing Parties arising out of or relating to the allegations in the Actions or

JJCI’s labeling, marketing, advertising, packaging, promotion, manufacture, sale

and distribution of all Covered Products as alleged in the Actions. For avoidance

of doubt, this includes, inter alia, all such claims that related in any way to

“clinically proven to help baby sleep better” statements that were or are contained

on the Covered Products or otherwise relate to the labeling, marketing, advertising,

packaging, promotion, manufacture, sale and distribution of the Covered Products

as “clinically proven” in connection with the Released Parties’ labeling,

advertising, marketing, packaging, promotion, manufacture, sale and distribution

of all Covered Products (as well as future identical statements about Covered

Products), which have been asserted or which could reasonably have been asserted

by the Releasing Parties in the Actions, including but not limited to claims alleging

any type of fraud, misrepresentation, breach of warranty, unjust enrichment or

unfair trade practice under any state or federal law (including all claims for

injunctive or equitable relief), but not including claims for personal injury.


39

2. “Released Parties” means JJCI, including all of its respective

predecessors, successors, assigns, parents, subsidiaries, divisions, departments, and

affiliates, and any and all of their past, present and future officers, directors,

employees, stockholders, partners, agents, servants, successors, attorneys, insurers,

representatives, licensees, licensors, subrogees and assigns. It is expressly

understood that, to the extent a Released Party is not a Party to the Agreement, all

such Released Parties are intended third-party beneficiaries of the Agreement.

3. “Releasing Parties” means Plaintiffs and each and every

Settlement Class Member, including each of their respective spouses, executors,

representatives, heirs, successors, bankruptcy trustees, guardians, wards, agents

and assigns, and all those who claim through them or who assert duplicative claims

for relief on their behalf.

C. On the Effective Date, each Releasing Party shall be deemed to have

released and forever discharged each of the Released Parties of and from any and

all liability for any and all Released Claims.

D. With respect to any and all Released Claims, and upon the Effective

Date without further action, for good and valuable consideration, Plaintiffs, on

behalf of themselves and the Settlement Class and as the representatives of the

Settlement Class, shall fully, finally, and forever expressly waive and relinquish

with respect to the Released Claims, any and all provisions, rights, and benefits of


40

Section 1542 of the California Civil Code and any and all similar provisions,

rights, and benefits conferred by any law of any state or territory of the United

States or principle of common law that is similar, comparable, or equivalent to

Section 1542 of the California Civil Code, which provides:

“A general release does not extend to claims which the

creditor does not know or suspect to exist in his or her

favor at the time of executing the release, which if

known by him or her must have materially affected

his or her settlement with the debtor.”

E. On the Effective Date, each of the Released Parties shall be deemed to

have released and forever discharged each of the Releasing Parties and their

respective counsel, including Plaintiffs’ Counsel, for all claims arising out of or

relating to the institution, prosecution and resolution of the Actions, except to

enforce terms and conditions contained in this Agreement.

F. The Parties agree that the Court shall retain exclusive and continuing

jurisdiction over the Parties and the Settlement Class Members to interpret and

enforce the terms, conditions, and obligations under the Agreement.

X. ATTORNEYS’ FEES AND EXPENSES AND PLAINTIFFS’ SERVICE

AWARDS

A. The award of Attorneys’ Fees and Expenses will be paid from the

Settlement Fund and as set forth in Section IV(C) above. Class Counsel shall

make an application for an award of Attorneys’ Fees and Expenses, on which JJCI

will take no position, not to exceed thirty-three percent of the Settlement Fund.


41

The application for an award of Attorneys’ Fees and Expenses will be made by

Class Counsel on behalf of themselves and Plaintiffs’ Counsel. Class Counsel

shall be responsible for allocating and distributing the Attorneys’ Fees and

Expenses award to Plaintiffs’ Counsel.

B. The Attorneys’ Fees and Expenses awarded by the Court shall be paid

to Class Counsel within ten (10) Days after the Effective Date.

C. Class Counsel shall make an application for Plaintiffs’ Service

Awards in the amount of Five Thousand Dollars ($5,000.00) to each of the

Plaintiffs, on which JJCI will take no position. The Service Awards to these

Plaintiffs will be in addition to the other consideration to the Settlement Class

Members, as set forth in Section IV above. The Service Awards will come out of

the Settlement Fund and will be paid within ten (10) Days of the Effective Date.

XI. FINAL JUDGMENT AND ORDER APPROVING SETTLEMENT

This Agreement is subject to and conditioned upon the issuance by the Court

of the Final Judgment and Order Approving Settlement that finally certifies the

Settlement Class for the purposes of this Settlement, grants final approval of the

Agreement, and provides the relief specified herein, which relief shall be subject to

the terms and conditions of the Agreement and the Parties’ performance of their

continuing rights and obligations hereunder.

XII. REPRESENTATIONS AND WARRANTIES


42

A. JJCI represents and warrants: (1) that it has the requisite corporate

power and authority to execute, deliver and perform the Agreement and to

consummate the transactions contemplated hereby; (2) that the execution, delivery

and performance of the Agreement and the consummation by it of the actions

contemplated herein have been duly authorized by necessary corporate action on

the part of JJCI; and (3) that the Agreement has been duly and validly executed and

delivered by JJCI and constitutes its legal, valid and binding obligation.

B. Plaintiffs represent and warrant that they are entering into the

Agreement on behalf of themselves individually and as proposed representatives of

the Settlement Class Members, of their own free will and without the receipt of any

consideration other than what is provided in the Agreement or disclosed to, and

authorized by, the Court. Plaintiffs represent and warrant that they have reviewed

the terms of the Agreement in consultation with Class Counsel and believe them to

be fair and reasonable. Class Counsel represent and warrant that they are fully

authorized to execute the Agreement on behalf of Plaintiffs.

C. The Parties warrant and represent that no promise, inducement or

consideration for the Agreement has been made, except those set forth herein. No

consideration, amount or sum paid, accredited, offered, or expended by JJCI in its

performance of this Agreement constitutes a fine, penalty, punitive damage, or

other form of assessment for any claim against it.


43

XIII. NO ADMISSIONS, NO USE

The Agreement and every stipulation and term contained in it is conditioned

upon final approval of the Court and is made for settlement purposes only,

pursuant to Federal Rule of Evidence 408. Whether or not consummated, this

Agreement shall not be: (a) construed as, offered in evidence as, received in

evidence as, and/or deemed to be, evidence of a presumption, concession or an

admission by Plaintiffs, JJCI, any Settlement Class Member or Releasing or

Released Party, of the truth of any fact alleged or the validity of any claim or

defense that has been, could have been, or in the future might be asserted in any

litigation or the deficiency of any claim or defense that has been, could have been,

or in the future might be asserted in any litigation, or of any liability, fault,

wrongdoing or otherwise of such Party; or (b) construed as, offered in evidence as,

received in evidence as, and/or deemed to be, evidence of a presumption,

concession or an admission of any liability, fault or wrongdoing, or in any way

referred to for any other reason, by Plaintiffs, JJCI, any Releasing Party or

Released Party in the Actions or in any other civil, criminal or administrative

action or proceeding other than such proceedings as may be necessary to effectuate

the provisions of the Agreement.

XIV. TERMINATION OF THIS AGREEMENT


44

A. Either Party may terminate this Agreement by providing written

notice to the other Party within ten (10) Days of the occurrence of any of the

following:

1. The Court does not enter a Preliminary Approval Order

conforming in all material respects to Exhibit 1 hereto, and/or the Parties are

required to make a change to the Settlement Agreement that either Party deems

material, including but not limited to, a change to the definition of Settlement Class

Members, the Settlement Relief described in Section IV, supra, the Releases

provided in Section IX, supra, or the type of notice required per the Notice

Program.

2. The Court does not conditionally and finally certify the

Settlement Class as defined herein or the Court’s order certifying the Settlement

Class is reversed, vacated, or modified in any material respect by another court; or

3. The Court does not enter the Final Judgment and Order

Approving Settlement in all material respects as defined herein and to the form

agreed by the Parties, or, if entered, such Final Judgment and Order Approving

Settlement is reversed, vacated, or modified in any material respect by another

court before the Effective Date.

B. It is expressly agreed that neither the failure of the Court to enter the

Attorneys’ Fees and Expenses Award, the Service Awards, nor the amount of any


45

attorneys’ fees and costs or incentive awards that may be finally determined and

awarded, shall provide a basis for termination of this Agreement.

C. JJCI may unilaterally withdraw from and terminate this Agreement up

to fifteen (15) Days before the Final Approval Hearing if more than two hundred

and fifty (250) Settlement Class Members have submitted valid and timely

Requests for Exclusion. If JJCI elects to terminate the Agreement pursuant to this

Section XIV(C), the Agreement and all related documents exchanged or signed by

the Parties or submitted to the Court shall be null and void and shall have no effect

whatsoever on the Actions or their adjudication.

D. In the event of termination, the terminating Party shall cause the

Settlement Administrator to post information regarding the termination on the

Settlement Website and the terminating Party shall pay any notice costs.

E. In the event this Agreement terminates for any reason, all Parties shall

be restored to their respective positions as of immediately prior to the date of

execution of this Agreement. Upon termination, Section III (A) herein shall

survive and be binding on the Parties, but this Agreement shall otherwise be null

and void.

XV. MISCELLANEOUS PROVISIONS

A. Entire Agreement: The Agreement, including all Exhibits hereto,

shall constitute the entire Agreement among the Parties with regard to the


46

Agreement and shall supersede any previous agreements, representations,

communications and understandings among the Parties with respect to the subject

matter of the Agreement. The Agreement may not be changed, modified, or

amended except in a writing signed by one of Class Counsel and one of JJCI’s

Counsel and, if required, approved by the Court. The Parties contemplate that the

Exhibits to the Agreement may be modified by subsequent agreement of JJCI and

Class Counsel, or by the Court. The Parties may make non-material changes to the

Exhibits to the extent deemed necessary, as agreed to in writing by all Parties.

B. Governing Law: The Agreement shall be construed under and

governed by the laws of the state of Illinois, in which the Court is located, applied

without regard to laws applicable to choice of law.

C. Execution in Counterparts: The Agreement may be executed by the

Parties in one or more counterparts, each of which shall be deemed an original but

all of which together shall constitute one and the same instrument. Facsimile

signatures or signatures scanned to PDF and sent by e-mail shall be treated as

original signatures and shall be binding.

D. Notices: Whenever this Agreement requires or contemplates that one

Party shall or may give notice to the other, notice shall be provided in writing by

first class U.S. Mail and email to:

1. If to Plaintiffs or Class Counsel:


47

James C. Shah SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 35 E. State Street Media, PA 19063 (610) 891-9880 [email protected]

Jayne A. Goldstein Pomerantz LLP 1792 Bell Tower Lane S. 203 Weston, FL 33326 (954) 315-3454 [email protected]

2. If to JJCI or JJCI’s Counsel:

Mark A. Neubauer (SBN 73728) CARLTON FIELDS JORDEN BURT, LLP 2000 Avenue of the Stars Suite 530 North Tower Los Angeles, CA 90067-4707 (310) 843-6300 [email protected] Kristen Reilly CARLTON FIELDS JORDEN BURT, PA 1045 Thomas Jefferson Street, NW Suite 400 East Washington, DC 20007 [email protected]

E. Stay of Proceedings: Upon the execution of this Agreement, all

discovery and other proceedings in this and all other Actions shall be stayed until

further order of the Court, except for proceedings that may be necessary to

implement the Agreement or comply with or effectuate the terms of this Settlement

Agreement.


48

F. Good Faith: The Parties agree that they will act in good faith and will

not engage in any conduct that will or may frustrate the purpose of this Agreement.

The Parties further agree, subject to Court approval as needed, to reasonable

extensions of time to carry out any of the provisions of the Agreement.

G. Binding on Successors: The Agreement shall be binding upon, and

inure to the benefit of, the heirs of the Released Parties.

H. Arms’- Length Negotiations: The determination of the terms and

conditions contained herein and the drafting of the provisions of this Agreement

has been by mutual understanding after negotiation, with consideration by, and

participation of, the Parties hereto and their counsel. This Agreement shall not be

construed against any Party on the basis that the Party was the drafter or

participated in the drafting. Any statute or rule of construction that ambiguities are

to be resolved against the drafting party shall not be employed in the

implementation of this Agreement and the Parties agree that the drafting of this

Agreement has been a mutual undertaking.

I. Waiver: The waiver by one Party of any provision or breach of the

Agreement shall not be deemed a waiver of any other provision or breach of the

Agreement.


49

J. Variance: In the event of any variance between the terms of this

Agreement and any of the Exhibits hereto, the terms of this Agreement shall

control and supersede the Exhibit(s).

K. Exhibits: All Exhibits to this Agreement are material and integral

parts hereof, and are incorporated by reference as if fully rewritten herein.

L. Taxes: No opinion concerning the tax consequences of the

Agreement to any Settlement Class Member is given or will be given by JJCI,

JJCI’s Counsel, Class Counsel, or Plaintiffs’ Counsel; nor is any Party or their

counsel providing any representation or guarantee respecting the tax consequences

of the Agreement as to any Settlement Class Member. Each Settlement Class

Member is responsible for his/her tax reporting and other obligations respecting the

Agreement, if any.

M. Implementation Before Effective Date: The Parties may agree in

writing to implement the Agreement, or any portion thereof, after the entry of the

Final Judgment and Order Approving Settlement, but prior to the Effective Date.

N. Modification in Writing: This Agreement may be amended or

modified only by written instrument signed by one of Class Counsel and one of

JJCI’s Counsel. Amendments and modifications may be made without additional

notice to the Settlement Class Members unless such notice is required by the

Court.


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c.anceming ~tn~ ~aart Q~ a1I Q~ tie st~b~e~C mattes of ~i.i.s ,~,~rEe~e~~C hits been made oar

x~e~~ed upon except as set ~ortl~ exp~es~~~' ~aexei~,

~', Detain r~risc~ict~~n; Thy Court s~ai~. retain jwrisdi~#~on ~i~h r~s~c~ ~a

tie .i~~le~a~n~ation and. •ez~~Q~rc~aaent of ~e terms of t~l~s Agr~ezx~emt, aid a.~. par~,~s

he~~etU submit to ~.e ,~.~i~c~ia~+on of the ~Qu~ ~'o~ purpas~s o~ Ie~e~t~ng ~d

e~~ox~z~g t~i~ ~.~r~e~ne~.t e c3aed in this ~,g~~~xu~n~.

~ '~T'I~.~,S~ 'DV~~~aF, ~a~h of the Pa~~faes he~r~~o ~s ~a~;sed ~ the

A.g~ree~.x~ent to be ~~ec~.~c~ on i1~ t~el~al~ ~~r its dull ~~~oriz~d. counse.~ a~ xecord, all

as of ~,~e ~.~~r s~t~fa~.~i, ~be~o~,

Daxec~: ~ / 7' ~~

a~~d; ~l' ~ ~ ~aD __ ---

e~-

~~ 4,•f ~ •~.

~a~►~,~'i~~c~s Jo~der~ l~ ~L.p QAttorneys fox ~o n & 3ohnSonCosa ~ er I~G. e

By: -~---~-~..a.

~`."~"`.~ # ern ~Nidme~, Pres~de~t~ohrisc~~ ~: 7ohn~s~n Consu~~ ,

~~






51

Dated:___________________ By:______________________________Jayne A. GoldsteinAttorneys for Plaintiffs and for the Settlement Class Members

Dated:___________________ By:______________________________James C. Shah, Esq.Shepherd, Finkelman, Miller & Shah LLPAttorneys for Plaintiffs and for the Settlement Class Members

Dated:___________________ By:______________________________Plaintiff Stephanie Leiner

Dated:___________________ By:______________________________Plaintiff Jacqueline Real

Dated:___________________ By:______________________________Plaintiff Jillian Gallagher

Dated:___________________ By:______________________________Jinette Hidalgo

08/18/16


Documents

Exhibit A - Home - Truth In Advertising...print publication, or via press release, whichever is earlier. 10. “Class Counsel” means James C. Shah of Shepherd, Finkelman, Miller